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Apportionment of Liability in Workplace Injury Cases

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Apportionment of Liability in Workplace Injury Cases Apportionment of Liability in Workplace Injury Cases Andrew R. Kleint I. INTRODUCTION ............................................................................ 65 II. THE D ILEM M A ............................................................................... 69 A. Workers' Compensation Background................................... 69 B . A n Example ............................................................................ 71 III. WORKING WITH COMPARATIVE RESPONSIBILITY AND SEVERAL L IABILITY ..................................................................................... 73 A. JudicialResponses ................................................................ 73 B. Scholars'Approaches......................................................... 78 IV. A NEW PROPOSAL ......................................................................... 80 A. The Basics: Several Liability ................................................80 B. Additional Complications..................................................... 83 1. Joint and Several Liability with Reallocation................ 84 2. Liability Based on Threshold ......................................... 86 C. The Problem of Insolvency .................................................. 89 V. SUGGESTIONS FOR STATUTORY REFORM ................................... 92 V I. C ONCLUSION ................................................................................. 93 I. INTRODUCTION Most scholars agree that the advent of comparative fault has been a positive development in tort law. The transition to comparative fault has not been easy, however, as states have grappled with its effects on a number i Paul E. Beam Professor of Law and Associate Dean for Academic Affairs, Indiana University School of Law-Indianapolis. Thanks to Michael D. Green, who called this topic to my attention after addressing it as a Reporter for the American Law Institute's RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY project. Professor Green provided considerable guidance and advice during my work on this Article. Thanks also to my colleague Larrie Wilkins for thoroughly engaging me on many of the issues raised in this Article, and to Dan Cole, Nicholas Georgakopoulos, and Susanah Mead for helpful comments on an earlier draft. Finally, thanks to Marissa Florio for providing excellent research assistance. 66 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW Vol. 26:1 of principles that developed in an earlier day.1 One area that remains particularly unsettled is how comparative fault affects the apportionment of damages in cases involving multiple tortfeasors. An especially vexing issue is how courts should apportion damage awards in multiparty workplace injury cases. Prior to comparative fault, states handled such cases in a straightforward fashion. Injured employees could seek compensation from employers pursuant to workers' compensation laws-statutory arrangements under which employers paid limited benefits for workplace injuries, regardless of fault. Employees, however, still could file tort actions against other entities ("third-party defendants") that contributed to their harm.2 If an employee won damages, the employer then could seek subrogation against the tort award to recover benefits it had paid. Two primary grounds supported subrogation: first, it prevented employees from receiving excessive compensation,3 and second, it allowed employers to recover from the only party deemed culpable for the employee's injury.4 The logic behind this process became questionable, however, as some states began to adopt comparative fault, and in many instances, abrogated the traditional rule of joint and several liability.5 These doctrinal changes 1. See, e.g., Michael D. Green, The Unanticipated Ripples of Comparative Negligence: Superseding Cause in Products Liability and Beyond, 53 S.C. L. REv. 1103 (2002) (discussing.how courts have struggled with a number of rules that evolved in the pre-comparative fault era, including the rule of last clear chance, the doctrine of joint and several liability, and the issue of pro rata contribution). 2. A product manufacturer would be the classic example. See, e.g., Barry v. Quality Steel Prods., Inc., 820 A.2d 258 (Conn. 2003) (carpenters injured while installing roof filed tort action against roof bracket manufacturer); Chavers v. Gatke Corp., 107 Cal. App. 4th 606 (2003) (mechanic exposed to asbestos on job filed tort action against manufacturer of friction brakes); Smith v. Ont. Sewing Machine Co., 548 S.E.2d 89 (Ga. App. 2001) (employee of mop manufacturer filed tort action against manufacturer of machinery that allegedly caused her injury at the workplace). 3. See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § B19 cmt. I (hereinafter RESTATEMENT (THIRD): APPORTIONMENT] ("These subrogation claims were justified because the plaintiff allowed to retain both full-tort damages and workers' compensation payments would be overcompensated."). 4. See, e.g., Struhs v. Protection Techs., Inc., 992 P.2d 164, 168 (Idaho 1999) ("The dual purposes of subrogation... are to achieve an equitable distribution between responsible parties 'by assuring that the discharge of an obligation be paid by the person who in equity and good conscience ought to pay it' and 'to prevent the injured claimant from obtaining a double recovery for an injury.' (quoting Presnell v. Kelly, 740 P.2d 43, 45 (Idaho 1987)). See also Swanson v. Hartford Ins. Co. of Midwest, 46 P.3d 584, 587 (Mont. 2002); Youngblood v. American States Ins. Co., 866 P.2d 203, 205 (Mont. 1993). 5. Joint and several liability means that a single tortfeasor can be responsible for the entire amount of the plaintiff's damages. When states began to move away from the "all or nothing" system of contributory negligence, they also began to move away from the "all or nothing" rule of joint and several liability. See Jonathan Cardi, Note, Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts, 82 IOWA L. REv. 1293, 1303-04 (1997) ("Today, only fourteen states and the District of Columbia retain virtually pure joint and several liability. Of the remaining thirty-six states, sixteen states have abolished, or nearly abolished, joint and several liability, and twenty have adopted a hybrid of the two systems."). 2005 APPORTIONMENT OF LIABILITY meant that courts could align liability with fault and potentially reduce tort awards based on the level of an employer's negligence.6 When a court makes such calculations, the traditional approach lacks justification. Why should an employer receive full reimbursement for workers' compensation payments through subrogation when a court has the ability to adjust an award based on its actual contribution to the harm?7 Several possibilities for reform exist. A small number of courts, for example, have suggested that employers should bear a comparative share of tort damages, regardless of limitations that workers' compensation laws place on liability Others have suggested that employers should contribute to the payment of tort damages, but with limits based on the employer's workers' compensation liability.9 A more nuanced proposal can be found in the American Law Institute's 1991 Reporters' Study titled Enterprise Liability for Personal Injury.'° The Reporters' Study approach would eliminate employer subrogation altogether and reduce tort awards by the amount of workers' compensation benefits that employers owe to employees."l In jurisdictions that adhere to the traditional rule of joint and several liability, the Reporters' Study approach has appeal: it would prevent a third party from unjustly paying the full amount of a plaintiff's damages, and it would do so in an environment where a comparative fault analysis would be unnecessary." In jurisdictions that have abrogated joint and several liability, 3 however, the Reporter's Study approach makes less sense. These states essentially compel fact-finders to consider relative shares of fault. Under such circumstances, the employer's level of culpability would seem 6. See LARSON'S WORKERS' COMPENSATION LAW §120.02[3], at 120-10.1 - 120.13 (Bender 2001) (hereinafter LARSON'S WORKERS' COMPENSATION) ("A growing number of states... have ruled that the third party [in a tort action] may be permitted to plead the employer's contributory negligence as a pro tanto defense to the extent of the workers' compensation benefits paid to the employee or to the extent of the employer's proportional fault in a comparative negligence jurisdiction."). 7. Most states, however, have not altered workers' compensation acts, which has sometimes compelled courts to apply obviously outdated mandates. See Sullivan v. Scoular Grain Co., 853 P.2d 877 (Utah 1993). But see Aitken v. Indus. Comm'n of Ariz., 904 P.2d 456, 460 (Ariz. 1995) ("Courts should not limit themselves to the rigid construction or application of a statute when significant changes in circumstances since its enactment produce results plainly contrary to legislative intent."). 8. See infra notes 48-51 and accompanying text. 9. See infra notes 51-53 and accompanying text. Presumably, under this approach, employers would retain subrogation actions if their workers' compensation liability exceeded their comparative share of tort damages. Although this approach offers much in terms of fealty to comparative fault, it is overly complex and potentially leaves the plaintiff undercompensated in an inordinate number of cases. 10.
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